Will Italian judges be the champions of LGBT rights?

Italian law may not protect gay rights, but that might not be a problem anymore: the courts can grant them on a case-by-case basis to individuals. Over the last two months, several Italian courts granted Italian same-sex couples full legal recognition of parenthood of their children.

This may not seem very significant in the United States, where plenty of gay couples adopt or have children through a surrogate mother or a sperm donor. But it is a revolutionary step toward equality in Italy, where same-sex adoption and surrogacy are illegal.

On February 23, the Court of Appeal of Trento, a city in northeastern Italy, ruled that two men should both be recognized as legal parents of their children. The couple had twins through a surrogate mother in Canada. When they returned to Italy, only the biological father was allowed to register as a parent. So the couple appealed to the local court, which ruled in their favor. When they got home that day, they were both fathers with full rights.

The ruling was a first in Italy, and it generated headlines in the country’s top newspapers. Since then,similar rulings have been issued by a few more courts across the country.

This progress in the Italian courts is limited because it applies to specific cases; the country’s politicians must now revise Italian laws to take into account that gay families do exist in Italy. The leaders of parliament should, at the very least, legalize parenthood arrangements that take place abroad. This is the only way to ensure real progress and grant the right of every child to have parents. Otherwise, same-sex families will continue to be treated as second-class citizens in Italy.

Why should Italy treat these twins—and many more children in similar situations—as if they had only one parent, when they actually have two, if in many other Western countries, such as Canada and Denmark, no one questions their relationship to the people they call Mom or Dad?

Yet the Italian parliament refuses to consider such cases in its legislation. “Italian legislators are bright people, but they are also deeply Catholic,” said Daniela Matta, a lawyer at the Court of Pavia. They don’t want to publicly break with the Church, but they’ll let gay couples pass through loopholes. “They are aware that those people who are really interested [in becoming parents] can do it through alternative solutions.”

Although officials will reject allegations that the government is still very much tied to the Vatican, the Church—located in the heart of Italy’s capital, Rome—does have significant influence on Italian politics. But legislators realize that same-sex families already exist in Italy, and the country’s politicians chose not to regularize whatever practices take place abroad.

Same-sex families cannot and should not be treated as any other illegal entities. The rights to practice artificial insemination, same-sex and single parent adoption are all granted by international law and by the 1993 Hague Convention on the Protection of Children, according to Matta.

In fact, the Italian courts were able to rule in favor of same-sex parents by arguing that they are acting in the children’s best interest.

If Italy does not recognize parenthood that was granted abroad, the children are subject to a “legal uncertainty” that will “influence negatively the personal identity of the children,” said Matta. In other words, it would ultimately become a form of discrimination against the children.

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In 2016, the government led by Prime Minister Matteo Renzi attempted to approve a new law on stepchild adoptions for same-sex couples along with a law on civil unions, a substitute for gay marriage. But while the section on civil unions passed, adoptions were left out of the law.

In Italy, stepchild adoptions—that are sometimes granted by judges to specific couples—are different from regular adoptions. The non-biological parent has fewer rights than the biological parent; moreover, the law doesn’t recognize family bonds between the adopted children and the relatives of the adopting parent—this means no grandparents, aunts, or cousins.

Flavio Romani, president of Arcigay, the largest national gay organization, said he “pushed” the parliament to approve the law on stepchild adoptions until the last moment of the parliamentary debate. While he was aware of its limitations, he tried to be pragmatic and accept any step forward offered by the parliament. Ultimately, due to the Five Star Movement’s refusal to support the law, nothing changed.

“It’s pure hypocrisy,” said Romani. Laws are supposed to give precise, transparent directions about issues that already exist; refusing to pass a law on same-sex adoption is “shortsighted,” he said, because gay families do exist in Italy and the government cannot pretend they don’t.

After Renzi resigned in December 2016, an interim government stepped in, with Paolo Gentiloni from the Democratic Party as prime minister. The Italian people are expecting to vote in parliamentary elections either later this year or in early 2018. In the meantime, Arcigay and other gay rights groups are waiting for the next government to be formed before they resume lobbying.

At the moment, it is unlikely that a draft of the law will reappear in parliament any time soon. But while the legislators have chosen to avoid the topic entirely, the problem persists: children with two parents legally have only one. So, the courts had to step in.

Italian judges are filling the void left by the legislators, said Romani.

Some may argue that Italy has a right not to harmonize its policy with other Western countries and not legalize same-sex adoptions or surrogacy. A survey by Demos & Pi from 2016 suggests that 48 percent of Italians are against same-sex adoptions, while 24 percent are in favor as long as one of the two parents is biologically related to the child.

Yet, it’s inexcusable that there is no legislation that regulates international recognition of adoption and surrogacy that occur abroad.

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Today, the only hope for same-sex parents to be recognized as such in Italy is to appeal to their local courts. But not everyone has the time, money and luck necessary to wage the kind of legal battle that the two fathers won in February in Trento. There are plenty of Italian judges who oppose same-sex adoptions and would not rule the same way the judge in Trento did.

If parliament refuses to change the status-quo, the Italian judges who rule in favor of same-sex families will be the only official champions of gay rights. The Italian judicial system does not allow judges to create new laws; they can only interpret them on a case by case basis. The only way to regulate these conditions is for the lawmakers to change the law.

“The state of inequality of these families is inadmissible. All families, whether they are straight or gay, should be granted protection,” said Matta. “There should no longer be children with no rights.”